What price does visibility incur? Is this price an inevitable
part of a rightsseeking enterprise? Does visibility enhance the
potential of gaining equality? Can visibility, as Foucault says in
Discipline and Punish (1979), be a trap?

Oishik Sarkar

Let’s not talk about Section 377 this once. I know that is a contentious proposition, since in many ways this archaic law remains at the core of the disadvantage that the sexually marginalised face in India. Activist, academic and popular engagements have given Sec. 377 a celebrity status in the realm of ‘queer’ issues in India, which has overshadowed the many other realms of conservative sexual morality that govern the lives of the sexually marginalised. I don’t mean to take away our focus from the immediate need to challenge and defeat the violence of law that Sec. 377 unleashes. That challenge demands all our solidarity. Yet simultaneously we might want to look at processes beyond the law that discipline and disadvantage the sexually marginalised in India in more insidious ways than the law – processes from which the law derives its strength to criminalise.

Activism around Sec. 377, increasingly open representations of the homosexual (albeit several times problematically) in commercial cinema, Pride Marches in cities like Kolkata, and endorsement from the likes of Amartya Sen and Vikram Seth, have indeed created a much needed political and cultural visibility for the queer population in India. Thanks to the HIV/ AIDS pandemic, focus on the sexually marginalised as ‘high risk’ groups has also led to a pathologised visibility. One way to understand this visibility is to weigh its political potential as a counter-hegemonic development that confronts heteronormativity in its face. Yet another way of understanding this is to measure the costs of this visibility – who all are benefiting from it, and who is losing out? What price does visibility incur? Is this price an inevitable part of a rightsseeking enterprise? Does visibility enhance the potential of gaining equality? Can visibility, as Foucault says in Discipline and Punish (1979), be a trap?

Visibilising What?

When we talk about creating visibility as a means of political recognition – who/ what is it that we want to make visible? Do we want to make visible queer people, or do we want to make visible non-heteronormative practices? One could say that the visibility of queer people automatically foregrounds practices that subvert heteronormativity. I would like to complicate this causal connection. For instance, Butch- Femme lesbian relationships have on several occasions been characterised as hetero-mimicries. Though a highly contested stand that understands heterosexuality as an a priori condition of human existence, such characterisation continues even within queer circles. Here we have the coming together of a particular kind of identity (lesbian) accompanied by a particular kind of practice/ performance (Butch-Femme), which when open to varied interpretations, subverts, but also conforms to heteronormativity. Let’s take another example. I have a friend who is biologically male, but ‘feels’ like a woman. Now this woman who he feels like has same sex preferences. So when he seeks out someone to have sex with that person will be a woman. But when we look from a distance, what do we see? We see a heterosexual couple having sex. In actuality, however, if the woman she is having sex with is a lesbian – they are having lesbian sex. If the woman is heterosexual then we fall short of our vocabulary to characterise the kind of sex they are having. This example makes clear the indeterminacy of both sexual identities and practices and cautions us of avoiding the trap of equating one with the other.

The need to distinguish sexual practice and identity becomes important if we are to work on a ‘visiblising’ project. In our attempt at breaking the silence around queer sexualities do we sometimes end up further calibrating already existing sexual hierarchies? The concept of ‘sexual hierarchy’ was introduced by American anthropologist Gayle Rubin in her influential essay ‘Thinking Sex’ where she discusses how hierarchies of sexual value function in the same ways as ideological systems of racism, ethnocentrism and religious orthodoxy: ‘They rationalize the well-being of the sexually privileged and the adversity of the sexually rabble’. Rubin outlines the rules of sexual conduct which currently have created a sexual hierarchy which places heterosexual, monogamous, married, reproductive sex at the top – what she calls the ‘charmed circle’. Anything deviating from this position is placed below in varying degrees – referred by her as the ‘outer limits’.

Rubin draws up her hierarchy on the basis of sexual acts and not identities. But what happens when we infuse the notion of identity into a sexual hierarchy? Gay men are generally lower in the hierarchy because it is assumed that they have homosexual sex. However, what happens to a Gay man who is forced into marriage, and thus has heterosexual sex with his wife? Where will he be on the hierarchy? Will he be considered heterosexual because of his practice and placed on top of the hierarchy, or will be considered Gay because of his identity and pushed down? Or will he be considered bisexual, if he carries on having homosexual sex while being married to a woman? What would happen to a heterosexual man who falls in the ‘men who have sex with men’ (MSM) category? Where will my friend be on the hierarchy – will ‘he’ be identified as a lesbian, or a heterosexual? What would we consider Sita and Radha from Deepa Mehta’s film Fire to be – lesbians in a marital fix, or frustrated housewives having sex with each other because their husbands wouldn’t?

A possible approach to answering these questions will be to raise the issue of ‘coming out’ – the powerful political act of making visible your own sexuality. One could say that a person’s position on the sexual hierarchy gets determined by what he/ she articulates as his/ her sexuality. Thus, while coming out could be a powerful assertion of self-identity, it also results in exacerbating the incidence of disadvantage on the sexually marginalised. However, coming out is enmeshed in its own politics.

A couple of years back I had noted in an article that as a queer person I did not ever feel the need to come out – and asked if that will act as a disqualification for me to be a part of the queer movement, because coming out is looked at as a kind of baptism that all queer people should take on to join the movement for claiming rights. I had critiqued that understanding stating that the term ‘queer’ though allencompassing of a whole range of non-heteronormative sexualities has an in-built process of creating its own normative standards.

While I stand by my critique, I do realise that my ability to disavow the importance of coming out had so much to do with my class and sexual preference. Although I consider myself to be queer, I still am a practicing heterosexual, and from a higher socio-economic class – a position that buttresses any possibility of disadvantage that I might face because of being queer. This might not be the case for several queer people for whom the feeling of liberation and self-confidence that accompanies coming out is worth the price that needs to be paid for becoming visible – in the eyes of a homophobic society and the criminal law. Yet, I would still tend to believe that the practice of coming out does remain a preserve of those who have the currency of a language that defines and temporally situates ‘coming out’ as a moment in time that queer people are expected to go through, much like all educated people are expected to graduate.

When class and caste intersect with sexuality, this might not be the case. The so-called ‘indigenous’ Indian sexualities of Kothis, Panthis and Hijras, among others, face an existential disadvantage in comparison to the contemporarily articulated identities of Lesbian, Gay, Bisexual, Transgender (LGBT). And this disadvantage exists even when Hijras haven’t had to ceremonially come out in the way those identified as lesbians and gays have had to. Further, the disadvantage faced by Hijras seems more connected to their class status than sexuality, or rather because of the coming together of both.

There is a certain level of passive tolerance regarding Hijras in Indian society. They’ve always been more visible in comparison to the LGBT – as harem keepers of kings, to singers at childbirths and weddings, to beggars on the train. We seem to have accorded them a liminal space on the margins of society as neither men nor women. But while their sexual identity has been ‘normalised’ as deviant, their class and caste identity situates them much below the LGBT on a sexual hierarchy. This is because the hierarchy is not only representative of a scale of most and least legitimate sexualities, but one that shows how, if one goes down that scale, a whole host of fundamental citizenship rights – like employment, education, shelter etc. – deplete. While Sec 377 can be interpreted to directly criminalise Gay men, it is still Hijras who routinely face incarceration and police violence because of their hypervisibility in public spaces like streets. Their visibility thus becomes an existential trap for them. Unlike lesbians, gays or bisexuals who have to articulate their sexuality for making them visible, for Hijras it is written on their body.

Our position on the sexual hierarchy gets further complicated when we confront some more troubling questions like: can there be a right-wing homosexual? Or are these identities diametrically opposite to each other? Could we have had several queer people voting for Modi in Gujarat? If yes, what would these people foreground as their identity – Hindus or homosexuals? Or can they ‘come out’ as Hindu homosexuals who are voting for a Hindu nation? Where will their place be on the sexual hierarchy if religion also gets infused in the determinants of calibration and scale?

In the case of the Fascist queer – will the project of making visible entail a responsibility on others to ‘expose’ their fascist ideology, or will it mean to invisibilise their sexuality, because it if becomes visible they will be persecuted by the very ideology that they espouse? Can there be a lesbian woman, a senior executive in a multinational, who hails Tata for manufacturing the Nano, blames Medha Patkar for stalling India’s economic growth, and chastises her heterosexual sister for falling in love with a lower caste man? Where will her place be on the hierarchy, what will be her stakes in making visible her identity?

The reasons for raising these questions is not to discredit the power of visibility, but to come to terms with the fact that visibility means different things for different people across the queer spectrum, and does not necessarily have an unqualified emancipatory potential. It also becomes important for us to question whether we can assume that by the virtue of being queer one can respond favourably to other experiences of exclusion – especially when issues of class and caste related privilege intersect with queerness. As I write this article, it is imperative on my part to question whether the very label of ‘queer’, and my fluent use of the term, can in itself be a signifier of privilege and access.

Privatising Visibility

It has been a queer feature of queer rights movements across the world that the articulation of the power of visibility has co-existed with the demand for the right to privacy. While the contents and consequences of visibility and privacy might be understood as being antithetical to each other, there is a logic that informs this strategy. The need for creating visibility arises from the imposed invisibilisation of queer people, which serves as the reason for their exclusion from rights guarantees. The claim for privacy rights is to say that what people do in private spaces – what kind of sex they have – is not the business of the state, and cannot be a ground for criminalising the act or the persons engaging in them just because they don’t meet standards of heteronormativity.

The right to privacy has been a ground on the basis of which the UN Human Rights Committee, in the 1994 case of Toonen vs Australia, declared that anti-sodomy laws infringe upon human rights; it has been the basis for challenging the controversial 1993 ‘don’t ask, don’t tell’ policy for the armed forces in US; and in India it has been used as a ground for demanding the repeal of Sec. 377.

In 2001 the Naz Foundation, a group working with MSMs and other sexually marginalized people, filed a petition in the Delhi High Court (still pending) asking for the section to be ‘read down’. Looking at the petition closely what emerges as a concern is the demand of the petition to read down the section and de-criminalise consensual, adult and private sex. Though ostensibly representative of the entire community of the sexually marginalised, the petition openly attempts at giving legitimacy to private sex, excluding many people who can only or would like to engage in acts of sexual intimacy in public. In effect, communities like the Hijras, are squarely excluded from the ambit of the petition’s demands. The issue here is not whether the petition should have demanded for ‘sex in public’, but that it wasn’t attentive to the slippery slope of the privacy claim – the fact that access to private space is a matter of privilege. What plays out is a process through which the ‘outer limits’ of Rubin’s sexual hierarchy gets further calibrated – and Hijras are pushed further down by the queer community itself. The notion of visibility here gets privatised by those within the movement who are higher up on the queer ladder of privilege.

The Price of Visibility.

In January 2005, a stall set up by Amitie – a collective that works on issues of alternative sexualities and HIV/ AIDS in Chandannagore, West Bengal – at the Rishra Book Fair was forcibly evicted from the fair because they had displayed posters and pamphlets on issues of homosexuality, safe sex and HIV/ AIDS awareness and were selling magazines and other literature on issues of sexual diversity, health and rights. The fair organisers alleged that public sentiment was hurt because of the ‘obscene’ materials that were on display at Amitie’s stall. Amitie challenged this arbitrary eviction in the Kolkata High Court, but their petition was dismissed on the ground that the material displayed at the stall was about homosexuality, and not about HIV/ AIDS..

Only recently on February 4, 2008, the police in Bombay raided a private party and arrested six men, and seized liquor bottles and condoms. The police crackdown was planned because details of the party were allegedly advertised on a gay web site and circulated through cell phone text messaging.

What do we make of these incidents? All those who were ‘busted’, were paying a price for making themselves visible. Clearly, one of the major perils of visibility is the resultant infringement on the freedom of speech and expression. Interestingly, it is not information on HIV/ AIDS or safe sex that is necessarily under the scanner of the law, but it is information that ‘promotes’ (read: makes public) homosexuality – where suddenly their ‘high risk’ health status is transformed into ‘high risk’ criminality. The fact that a private party was busted in this case, and the private premises of an organization like the Naz Foundation in Lucknow were raided, suggests that in the eyes of the law, those were public incidents that had to be clamped down on. In case of the book fair, it was an attempt at erasure of public visibility, in effect shrouding it under the cloak of silence, or privacy. Thus, both visibility and privacy can get used as justifications to delegitimise and criminalise queer collectivisation, association and expression.

One way to read the incidents is to consider the repercussions of their visibility as a price worth paying. The other way of reading it is to ask whether the political plot of gaining recognition through visibility has gone awry, because it has become inextricably linked to issues of health and hygiene – links that have also been reinforced by the queer movement. One could say that an almost singular engagement with the repeal of Sec 377 by the movement and accompanying claims around the right to privacy has led to privacy and visibility working against each other.

Towards a Politics of ‘Counter-Heteronormativity’

Should invisibility be a way to avoid the Foucauldian trap? Or is there a need to conceptualise visibility differently? Being part of the upper class ‘queer’ community in India, I believe that we need to challenge not just dominant heteronormativity, but also our own discomfort with difference. We cannot privilege sexual orientation/ preference/ identity as the most significant sexual difference among us. Or else we are in danger of creating our own sexual ‘lower orders’.

What is an immediate need in the present context of living as queer people, in a highly sex-phobic nation, is to historicise sexuality – not only to invoke the ‘past’ but also to document what Foucault calls the ‘histories of the present’. I do not, however, suggest a project that will exclusively excavate the ‘truth’ about the plural traditions of ‘Indian’ sexuality and thus lend legitimacy to the rights claims of the sexually marginalised, simply to avoid engaging with a counter-cultural move against the argument which says that homosexuality is a western import. Because that might, in the long run, impose fixated meanings to ‘Indian’ sexualities, thus excluding many more emerging forms of ‘post-modern’ sexualities. Instead, what might be a more useful means to capture the ‘histories of the present’ will be to identify those political assertions that can understood as ‘counter-heteronormative’. By ‘counter-heteronormative’ Nivedita Menon, professor of political science at Delhi University, refers to ‘a range of political assertions that implicitly or explicitly challenge heteronormativity and the institutions of monogamous patriarchal marriage’. These assertions travel through the corridors of law – when 377 is being challenged; on the streets – when Hijras come out to protest against police atrocities; and in conferences, where a sole panel on sexuality attempts to disrupt the peace with which we intellectualise, and through the daily negotiations for survival that the sexually marginalised engage in.

When liminality offers cruel possibilities of invisibilisation at every step, the queer person’s travails of existence demand a redefinition of ‘resistance’ – not just as political participation in rallies, films on queer desire, challenges to Sec. 377 – but the daily negotiations and choices about conformity and transgression. This is where ‘counter-heteronormative’ histories get written. What then gets foregrounded are layered realities of ‘deviant’ lives – married homosexual men, hijra sex workers, Muslim lesbians and Dalit kothis. The potential of such a politics is the emergence of languages of resistance out of the very existence of the sexually marginalised – as a subject that disrupts the dominant norms of heterosexuality, queer sexuality and as well as the law.
 

Oishik Sircar is a human rights lawyer and researcher and presently Graduate Scholar in Women’s Rights at the Faculty of Law, University of Toronto. He has previously worked as a campaigner with Amnesty International India and has taught at the Women’s Studies Centre, University of Pune. He works in the areas of postcolonial feminist legal theory, sexual rights, migration studies and cultures of human rights.